Crim Pro--Fourth Amendment Flashcards
What rights are protected under the Fourth Amendment?
The 4th amendment provides that people should be free from unreasonable searches and seizures. Also provides no arrest or search warrants shall be issued, except on probably cause and under oath, describing with particularity the place, persons, or things to be seized. The 4th Amendment’s protections have been extended to the states via the 14th amendment.
Does the 4th amendment apply to conduct by private parties?
No. Applies only to gov’t conduct. In essays need to identify the gov’t actor. Usually the police.
Who has standing to assert a 4th amendment violation?
All persons, not just citizens. BUT must have a reasonable expectation of privacy. Important to analyze standing in each questions.
What kinds of searches fall within scope of 4th amendment?
Of dwelling places; papers; personal effects; of person
What is the exclusionary rule?
Any evidence illegally obtained under the 4th amendment shall be excluded at trial.
What is the fruit of the poisonous tree doctrine?
Not only is the illegally obtained evidence itself inadmissible but also any other evidence or “fruit” stemming from the “poisonous tree.”
Can you purge the taint of the poisonous tree?
Yes if: a) INDEPENDENT SOURCE – evidence of same or similar nature obtained from an independent source; b) INEVITABLY DISCOVERED – evidence that would have been discovered anyway; c) SUBSEQUENT AND VOLUNTARY SUPPLY – defendant supplies subsequently. BOP on G.
What are some examples of when there is no standing to assert 4th amendment right?
a) mere presence in an automobile not your own does not confer standing; b) ABANDONMENT – discarding of evidence – if a person gets rid of evidence that was on his person, no 4th A violation – i.e., mere ownership of evidence is not sufficient.
Can a person have an expectation on privacy in a public place?
Yes, but it will depend on the circumstances. So perhaps in a phone booth where the door is closed and perhaps not if the door is open and everyone can hear you.
What items of personal effects have been held to not be subject to a reasonable expectation of privacy?
Concept is that these items are “held out” to the public. Handwriting samples; voice samples; bank records; telephone numbers; student lockers and school bags in public schools IF THERE IS A REAS BELIEF CONTAIN CONTRABAND; telephone conversations where no effort made to make private; activities in open areas; trash; jail cells.
What is G’s BOP in challenging a motion to suppress?
Preponderance of the evidence (more likely than not)
What happens if D testifies at a hearing on a motion to suppress?
Evidence cannot be used against him during trial to show guilt but can be used for impeachment, which in theory is just to show credibility.
What is the warrant requirement?
In order for a search and seizure to be valid, there is a presumption that the police must have acted pursuant to a valid warrant. Lots of exceptions.
What are the warrant exceptions?
Stop & Frisk (Terry stop); consent; hot pursuit; search incident to a lawful arrest; automobile/vehicle; plain view; exigent circumstances; border searches.
What is a stop and frisk search?
Comes up on exam if someone is walking around suspiciously and cops pat them down. Does not involve a car.
What are the elements of a Terry stop and frisk?
a) police must have a “reasonable articulable suspicion” that a person is armed and dangerous and that a crime has been committed – looking for concealed weapons; b) modest amount of suspicion ok; c) FOR WEAPONS ONLY, NOT CONTRABAND; d) pat down – least intrusive means possible under the circumstances. Can’t stop and frisk just because someone has failed to show ID. In short, generally Terry stops are limited to a pat down for concealed weapons only.
How has Terry stop been expanded over years?
PO suspicion may be based on information from an informant, even an anonymous one, not just PO’s own observation; can be used to detain suspect for investigation of possible crime, not just to check for weapons; may seize personal effects if grounds found during stop.
What is a consent search?
D or person in authority gives consent to the search, and the consent is a voluntary, knowing and intelligent waiver. Can’t be a result of police coercion, tho PO has no duty to explain to target rights. Search must be limited to scope of consent. Consent can be revoked at any time. Consent may not be obtained by trickery. If PO uses false pretenses to obtain access, no right to seize.
What third parties can consent to searches?
Any person with authority over the premises – e.g., a roommate, tenant, spouse, parent. Ownership is not the test, though. A land lord can’t consent to a search of a tenant’s apartment. A motel owner can’t consent to a search of a guest’s room.
What is hot pursuit doctrine?
If police are in hot pursuit of a suspect in a felony case, suspect cannot escape arrest and search by going into his house. PO may follow into dwelling. Once inside, P may seize evidence they see in “plain view.” Don’t see this a whole lot. Easy.
What is a lawful arrest?
A felony arrest without a warrant by a police officer in public is lawful if based on probable cause.
What is probable cause?
Probable cause is trustworthy facts and knowledge sufficient for a reasonable person to believe that the suspect has committed a crime. Probable cause is determined from the “totality of the circumstances.”
What is search incident to lawful arrest?
Incident to a lawful arrest, P may search the person and areas into which the person might reach to obtain a weapon or destroy evidence. Limited to person’s immediate control or lurch. Lurch could include the passenger compartment of a car but not the trunk. May permit search of passenger area of car. “Incident to” includes before arrest if there is PC to arrest.
What is the automobile/vehicle exception?
Warrantless searches of vehicles may be justified bc of inherent mobility and risk of losing evidence. Vehicle cannot be stopped in first place unless prob cause. If PC exists, depending on probable cause, PO may search entire vehicle, not just passenger area, including trunk. If there is pc that suspect stole TVs can search trunk but not the glove compartment. Once stopped, other exceptions might apply such as SITA and plain view.
